Dozier v. Attica Correctional Facility et al
Filing
19
DECISION AND ORDER granting 10 Motion to Dismiss for Failure to State a Claim; granting 17 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 01/07/2022. (MGB)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PLUSH DOZIER,
Plaintiff,
DECISION AND ORDER
-v6:20-CV-6628 EAW
GENESEE COUNTY, WILLIAM
ZIPFEL, and JIM CONWAY,
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff, Plush Dozier (“Plaintiff”), a pre-trial detainee previously
incarcerated at the Attica Correctional Facility (“Attica”) and the Genesee County Jail,
filed this action seeking relief under 42 U.S.C. § 1983. (Dkt. 1). Plaintiff alleges that his
constitutional rights were violated when he was wrongfully confined at Attica despite the
absence of a conviction of any offense punishable by such imprisonment and while there,
was subjected to excessive force and emotional trauma by Attica guards and other inmates.
Presently before the Court is a motion to dismiss (Dkt. 10) filed by defendant Jim
Conway (“Conway”) and motion for summary judgment (Dkt. 17) filed by defendants
Genesee County and William Zipfel (collectively “County Defendants”). The Court issued
scheduling orders on both motions (Dkt. 12; Dkt. 18) warning Plaintiff of the consequences
of not responding to the motions, but no further submissions were filed. For the following
reasons, both motions are granted.
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BACKGROUND
I.
Factual Background
The following facts are taken from the County Defendants’ Statement of Undisputed
Facts and Plaintiff’s complaint. (See Dkt. 17-37; Dkt. 1). Plaintiff failed to submit an
Opposing Statement of Material Facts, and therefore the factual statements contained in
the County Defendants’ statement may be “deemed admitted for purposes of the motion”
if they are supported by admissible evidence in the record. See L. R. Civ. P. 56(a)(2); see
also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426
F.3d 640, 648-49 (2d Cir. 2005) (“district courts have the authority to institute local rules
governing summary judgment submissions” although “[r]eliance on a party’s statement of
undisputed facts may not be warranted where those facts are unsupported by the record”).
The Second Circuit has indicated that a district court should not deem unopposed facts
admitted when those facts are unsupported in the record. See Holtz v. Rockefeller & Co.,
258 F.3d 62, 73-74 (2d Cir. 2001).
Here, each factual assertion within the County Defendants’ Statement of Undisputed
Facts is either taken from the complaint or supported by a citation to exhibits sufficient to
prove those factual assertions. (See Dkt. 17-37). Accordingly, the Court deems the factual
allegations in the County Defendants’ Statement of Undisputed Facts admitted. See Fed.
R. Civ. P. 56(e)(2); N.Y. State Teamsters, 426 F.3d at 648-49; Gubitosi v. Kapica, 154 F.3d
30, 31 n.1 (2d Cir. 1998); Thurmond v. Bowman, 211 F. Supp. 3d 554, 562 (W.D.N.Y.
2016).
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Plaintiff was charged with first degree arson and attempted murder in violation of
New York Penal Law § 150.20(01) and § 110-123.25(1), respectively, and booked into the
Genesee County Jail on June 15, 2018. (Dkt. 17-37 at ¶¶ 2, 3; Dkt. 1 at 5). While held at
the Genesee County Jail, plaintiff “repeatedly engaged in dangerous, disruptive and
threatening behavior.” (Dkt. 17-37 at ¶ 4). On August 14, 2018, Plaintiff was moved to
the custody of the Department of Corrections and Community Supervision (“DOCCS”)
and housed at Attica, a maximum-security prison, pursuant to Corrections Law § 504(2).
(Dkt. 17-37 at ¶¶ 5, 6; Dkt. 1 at 5).
Substitute Jail Orders continuing Plaintiff’s care by DOCCS were issued on
September 24, 2018, and October 29, 2018. (Dkt. 17-37 at ¶¶ 8, 9). On November 23,
2018, Plaintiff commenced a proceeding pursuant to New York C.P.L.R. Article 78 seeking
to contest his transfer from the Genesee County Jail to Attica. (Id. at ¶ 10). On January 2,
2019, a written Memorandum and Judgment was issued that found Plaintiff’s transfer to
Attica “in accordance with Corrections Law § 504 and the applicable regulations,” and that
Plaintiff “had not shown that the Commission of Corrections exceeded its authority or
abused its discretion” in transferring Plaintiff. (Id. at ¶ 14). Substitute Jail Orders
continuing Plaintiff’s care by DOCCS were issued on November 26, 2018, January 2, 2019,
January 24, 2019, March 1, 2019, and April 1, 2019. (Id. at ¶¶ 11, 15, 16, 17, 18).
On May 3, 2019, an Order for Commitment was entered, finding that Plaintiff
lacked the capacity to understand the proceedings against him or assist in his own defense.
(Id. at ¶ 19). An additional Substitute Jail Order was issued on May 8, 2019. (Id. at ¶ 20).
On May 15, 2019 Plaintiff was transferred from Attica to the Central New York Psychiatric
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Center and on May 17, 2019, the New York State Commission of Corrections revoked the
Substitute Jail Orders previously issued. (Id. at ¶¶ 21, 22).
Two claims in Plaintiff’s complaint remain. The first is for Plaintiff’s unlawful
imprisonment at Attica, and the second is a failure to protect claim. In his complaint,
Plaintiff alleges that he filed a grievance as to both claims but did not appeal either
grievance. (Dkt. 1 at 5-6).
II.
Procedural Background
Plaintiff commenced the instant action on August 21, 2020, accompanied by a
motion to proceed in forma pauperis. (Dkt. 1; Dkt. 2). On April 19, 2021, the Court
granted Plaintiff’s motion for in forma pauperis, and granted him leave to file an amended
complaint within 45 days from the date of the Order. (Dkt. 5). The Court directed the
Clerk of Court to cause the United States Marshals Service to serve the County Defendants
and Conway with Plaintiff’s complaint if Plaintiff did not file an amended complaint. (Id.).
On June 28, 2021, Plaintiff filed a motion for an extension of time to file his
amended complaint. (Dkt. 8). Notwithstanding the motion’s untimeliness, the Court
granted the motion and permitted Plaintiff an extension through July 29, 2021, to file an
amended complaint. (Dkt. 9). No amended complaint was filed. Conway filed the instant
motion to dismiss on July 20, 2021. (Dkt. 10). No opposition was filed to Conway’s
motion. On October 19, 2021, the County Defendants filed the instant motion for summary
judgment. (Dkt. 17). No opposition was filed to the County Defendants’ motion.
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DISCUSSION
I.
Legal Standards
A.
Motion to Dismiss
“In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court
should consider the motion by “accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund
v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff
must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542,
546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’” Nielsen
v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at
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555). While the Court is “obliged to construe [pro se] pleadings liberally, particularly
when they allege civil rights violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth
in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after
Twombly, though, we remain obligated to construe a pro se complaint liberally.”). “In
deciding an unopposed motion to dismiss, a court is to assume the truth of a pleading’s
factual allegations and test only its legal sufficiency. . . . Thus, although a party is of course
to be given a reasonable opportunity to respond to an opponent’s motion, the sufficiency
of a complaint is a matter of law that the court is capable of determining based on its own
reading of the pleading and knowledge of the law.” Bey v. Nugent, No. 18-CIV-7878
(PGG)(RWL), 2020 WL 6530917, at *4 (S.D.N.Y. June 3, 2020), report and
recommendation adopted, No. 18-CIV-7878 (PGG)(RWL), 2020 WL 4731419 (S.D.N.Y.
Aug. 14, 2020) (quotation omitted).
B.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the Court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
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“The moving party bears the burden of showing the absence of a genuine dispute as
to any material fact. . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the
moving party has met its burden, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)).
Specifically, the non-moving party “must come forward with specific
evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654
F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “Where a motion for summary judgment is unopposed,
the Court accepts as true all factual allegations in the admissible materials accompanying
the motion for summary judgment, see Fed. R. Civ. P. 56(e), and assesses only whether
any genuine issue of material fact remains for trial on the summary judgment record as it
stands.” Sanders v. Viseau, No. 3:20CV00250(SALM), 2021 WL 6197314, at *2 (D.
Conn. Dec. 30, 2021) (quotation and citation omitted).
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C.
Administrative Exhaustion
Pursuant to the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
To satisfy that requirement, prisoners in New York must ordinarily follow a
three-step DOCS grievance process. The first step in that process is the filing
of a grievance with the Inmate Grievance Resolution Committee. Next, the
inmate may appeal an adverse decision to the prison superintendent. Finally,
the inmate may appeal the superintendent’s decision to the Central Office
Review Committee (“CORC”). In general, it is only upon completion of all
three levels of review that a prisoner may seek relief in federal court under
§ 1983.
Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (citations omitted); see also
Tillman v. Phillips, No. 9:19-CV-1597 (LEK/CFH), 2021 WL 5233308, at *3 (N.D.N.Y.
Nov. 10, 2021) (“Courts in [ ]this Circuit have long recognized [DOCCS’ three-step]
procedure as an ‘available’ remedy for purposes of the PLRA.” (quoting Hall v. Cnty. of
Saratoga, No. 10-CV-1120 (NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6,
2013)), report and recommendation adopted, No. 9:19-CV-1597 (LEK/CFH), 2021 WL
5768393 (N.D.N.Y. Dec. 6, 2021). “[T]he PLRA requires ‘proper exhaustion,’ which
‘means using all steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).’” Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d
Cir. 2006) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)).
“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege
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excessive force or some other wrong,” Porter v. Nussle, 534 U.S. 516, 532 (2002), and
applies to pretrial detainees, Wilson v. Calderon, No. 14-CIV-6209(GBD)(GWG), 2017
WL 2881153, at *6 (S.D.N.Y. July 6, 2017) (“For both sentenced prisoners and pretrial
detainees, the [PLRA] . . . places an additional restriction on § 1983 claims: a prisoner must
exhaust all available administrative remedies before filing his or her complaint in federal
court.”), report and recommendation adopted, No. 14CIV6209GBDGWG, 2017 WL
3209148 (S.D.N.Y. July 27, 2017). “Compliance with prison grievance procedures . . . is
all that is required by the PLRA to ‘properly exhaust.’” Jones v. Bock, 549 U.S. 199, 218
(2007). As such, “[t]he exhaustion inquiry . . . requires that [the court] look at the state
prison procedures and the prisoner’s grievance to determine whether the prisoner has
complied with those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009).
“Exhaustion is mandatory—unexhausted claims may not be pursued in federal
court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011); see also Ross v. Blake, 578
U.S. 632, 639 (2016) (“mandatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.”). “[D]efendants bear the burden of
proof and prisoner plaintiffs need not plead exhaustion with particularity.” McCoy v.
Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003). An exception from the exhaustion
requirement exists only if the process is unavailable to a prisoner because “(1) it operates
as a simple dead end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates, (2) it is so opaque that it becomes, practically speaking, incapable of
use, meaning that some mechanism exists to provide relief, but no ordinary prisoner can
discern or navigate it; or (3) prison administrators thwart inmates from taking advantage
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of a grievance process through machination, misrepresentation, or intimidation.” Smith v.
Papoosha, No. 3:19CV206 (MPS), 2022 WL 35802, at *6 (D. Conn. Jan. 4, 2022) (internal
citation and quotations omitted).
“The question as to whether the plaintiff has exhausted his administrative remedies
is a question of law.” Ayers v. Scarlotta, No. 9:20-CV-51 (GTS/TWD), 2021 WL 1575938,
at *4 (N.D.N.Y. Apr. 22, 2021) (citing Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir.
1999)), report and recommendation adopted, No. 9:20-CV-51 (GTS/TWD), 2021 WL
2211015 (N.D.N.Y. June 1, 2021). The Court is cognizant that “[m]ost circuits that have
considered the issue, . . . including this circuit, have held that nonexhaustion is an
affirmative defense, and that therefore defendants bear the burden of proof and prisoner
plaintiffs need not plead exhaustion with particularity.” McCoy, 255 F. Supp. 2d at 248.
Accordingly, “[t]he only circumstance in which it is appropriate to dismiss a complaint on
nonexhaustion grounds is when it is apparent from the face of the complaint that the
plaintiff failed to exhaust his administrative remedies.” Randle v. Alexander, 960 F. Supp.
2d 457, 483 (S.D.N.Y. 2013). More often, the issue is resolved on a motion for summary
judgment. Johnson v. City of New York, No. 09 CIV. 4685 PGG, 2011 WL 1044852, at
*11 (S.D.N.Y. Mar. 18, 2011) (“[C]ourts routinely grant summary judgment against
plaintiffs who have failed to exhaust administrative remedies as required by the PLRA.”).
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II.
Analysis
Here, Plaintiff alleges in his complaint that he filed a grievance regarding both of
his pending claims but concedes that he did not appeal beyond those filings. (Dkt. 1 at 56). As a result, it is undisputed that Plaintiff has not exhausted his administrative remedies.
As noted by the court in Sanders v. Viseau, No. 3:20CV00250(SALM), 2021 WL 6197314,
at *4 (D. Conn. Dec. 30, 2021):
A plaintiff who files a Level 1 grievance will not be found to have exhausted
his remedies if “he had not pursued the available remedy of filing a ‘level
two grievance[.]’” Gibson v. Goord, 280 F.3d 221, 223 (2d Cir. 2002); see
also Ben-Israel v. Diaz, No. 3:18CV01723(VLB), 2019 WL 4738858, at *4
(D. Conn. Sept. 27, 2019) (“A grievance that is denied or rejected may be
appealed to the next level. . . . Thus, under the directive, plaintiff was able to
appeal the rejection to Level 2 and was required to do so to complete the
exhaustion process. Plaintiff failed to fully exhaust his administrative
remedies before commencing this action.” (citations omitted)); Morales v.
Dzurenda, No. 3:07CV01220(CFD), 2009 WL 8695525, at *4 (D. Conn.
Sept. 8, 2009), aff’d, 383 F. App’x 28 (2d Cir. 2010) (“Morales did not
comply with the requirements of Administrative Directive 9.6 for filing a
Level 2 Grievance in order to appeal the denial of the Level 1 Grievance.
Thus, he did not properly exhaust his administrative remedies.”).
Id. at *4. “The administrative directives provide that an inmate may appeal to level 2 if he
fails to receive a timely response to his level 1 grievance or if his level 1 grievance is
rejected.” Id. at *3. Here, while Plaintiff alleges that he received no relief in response to
his grievance, he was nevertheless required to continue to pursue the exhaustion of his
administrative remedies, which he failed to do.
In light of his pro se status, the Court also considers whether Plaintiff’s failure to
exhaust should be excused under any of the available exceptions and concludes that
Plaintiff having failed to respond to the pending motions, there is no information before
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the Court that could justify the application of an exception. See Banks v. United States,
No. 10 Civ. 6613 (GBD) (GWG), 2011 WL 4100454, at *11 (S.D.N.Y. Sept. 15, 2011)
(“[The plaintiff] has not demonstrated that he should be excused from having to comply
with the PLRA’s exhaustion requirements.”), adopted, 2011 WL 5454550 (S.D.N.Y. Nov.
9, 2011); Hill v. Donoghue, No. 08-CV-1045 (JS) (AKT), 2010 WL 3924858, at *1
(E.D.N.Y. Sept. 30, 2010) (“[A] prisoner plaintiff may seek to counter [the] defendants’
contention that the prisoner has failed to exhaust available administrative remedies.”).
There being no evidence that the grievance process was unavailable to Plaintiff,
particularly where Plaintiff availed himself of the process by filing a grievance in the first
instance, no basis to excuse his noncompliance is evident. See also Allah v. Ryan, 436 F.
Supp. 3d 621, 628 (W.D.N.Y. 2020) (plaintiff not excused from compliance with
exhaustion requirement); Fox v. Lee, No. 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600,
at *9 (N.D.N.Y Dec. 18, 2018) (rejecting as meritless plaintiff’s arguments that grievance
procedures were not available to him because his claims pertaining to hearing officers were
non-grievable). Accordingly, dismissal of Plaintiff’s complaint is warranted. Jackson v.
Jackson, No. 16-CV-08516 (PMH), 2021 WL 981849, at *5 (S.D.N.Y. Mar. 16, 2021)
(“Even while granting Plaintiff—who filed nothing in opposition to this motion . . .—every
conceivable benefit of the doubt to which a pro se litigant is entitled, there is no genuine
issue of material fact on the instant motion. Consequently, summary judgment is proper
here because: (1) Defendants established that Plaintiff failed to exhaust his administrative
remedies and, as such, also their entitlement to summary judgment on the affirmative
defense of Plaintiff’s failure to exhaust his administrative remedies as required by the
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PLRA; and (2) Plaintiff was warned that failure to file an opposition would result in the
Court concluding that the motion was unopposed.”).
For these reasons, under either the standard for a motion to dismiss or for summary
judgment, Plaintiff’s complaint is subject to dismissal and both motions are granted.1
CONCLUSION
For the foregoing reasons, Conway’s motion to dismiss (Dkt. 10) and the County
Defendants’ motion for summary judgment (Dkt. 17) are granted. The Clerk of Court is
directed to enter judgment and close the case.
SO ORDERED.
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
DATED:
January 7, 2022
Rochester, NY
1
Because the issue the exhaustion of administrative remedies subjects Plaintiff’s
complaint to dismissal, the Court need not address the County Defendants’ alternative
arguments as to the sufficiency of the claims or the applicability of the doctrines of
qualified immunity and/or collateral estoppel.
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